Hurt v. Knox

• Court: Alabama Supreme Court
• Writing for the Court: BROWN, J. (after stating the facts as above).
• Citation: Hurt v. Knox, 220 Ala. 448, 126 So. 110 (Ala. 1930)
• Decision Date: 23 January 1930
• Docket Number: 1 Div. 536.
• Parties: HURT ET AL. v. KNOX.

126 So. 110

220 Ala. 448

HURT ET AL. v. KNOX.

1 Div. 536.

Supreme Court of Alabama

January 23, 1930

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by L. J. Knox against J. A. Hurt, with garnishment in aid of suit to the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant and garnishee appeal. Reversed and remanded.

Initial step in proceedings for rehearing essential to jurisdiction is presentation of petition to judge for necessary order for supersedeas. Code 1940, Tit. 7, §§ 279, 281, 283.

The appellee, L. J. Knox, on June 17, 1927, sued the appellant Hurt on a promissory note, not alleging in his complaint that Hurt had waived his exemptions; and on July 30, 1927 judgment by default was entered against Hurt for $1,798.12 "with waiver of exemptions as to personal property."

On September 30, 1927, Knox sued out a writ of garnishment on said judgment, naming the appellant Pacific Mutual Life Insurance Company as garnishee. This writ was served on the garnishee on October 7, 1927, and on October 17, 1927, the garnishee answered that at the time of the service of the writ, and at the time of making answer, it was indebted to the defendant in the sum of $200, under a policy of insurance issued to the defendant insuring him "against disability commencing while the policy is in force, and resulting from bodily injury effected through accidental means, and against disability commencing while this policy is in force, and resulting from sickness; such disability, in both cases, to be such as will result in continuous, necessary, and total loss of all business time, as follows: "The Company will pay indemnity at the rate of two hundred ($200) Dollars per month during the continuance of disability as defined above," etc.

On May 31, 1928, the garnishee filed a supplemental answer admitting an additional indebtedness under said policy of $1,400.

On June 29, 1928, the notice issued to said defendant not being served on him, the court entered judgment against the garnishee and in favor of the plaintiff for $1,600.

On June 30, 1928, the garnishee filed another supplemental answer alleging that demand for the payment of the money due under said policy had been made on it by J. H. Lusk, of Epps, La claiming the funds due under said policy by virtue of an assignment dated December 29, 1927, wherein defendant had assigned to said Lusk all of his right, title, and interest in and to said policy, "together with all benefits and advantages to be had or derived therefrom."

On October 27, 1928, the appellants, Hurt and the garnishee insurance company, filed in the office of the clerk of the court a petition for rehearing under section 9521 of the Code-the four months' statute.

This petition was presented to the judge of the circuit court, and was set for hearing on November 10, 1928, on which date, on motion of the plaintiff, the petition was stricken from the files on the ground that it had not been presented to the judge within four months from the rendition of the judgment.

The defendant and the garnishee have separately appealed from the judgment condemning the indebtedness due from the garnishee to the defendant to the satisfaction of plaintiff's demand, and have jointly appealed from the judgment of the court granting the plaintiff's motion to strike the petition for rehearing.

At the last term-on May 23, 1929-the case was submitted on the motion of the appellee to dismiss "the appeal *** because the judgment or decree, or either (neither) of them will support an appeal," and it was thereupon, on May 25, 1929, ruled that, while the judgment of the court granting the motion to strike the petition for rehearing would not support an appeal, the appeal was sustained by the judgment of condemnation, and the motion was overruled.

The case is now submitted on a motion to consolidate the appeals and on the merits, and the appellants separately assign errors.

Stevens, McCorvey, McLeod, Goode & Turner and Thornton & Frazer, all of Mobile, for appellants.

A. S. Whiting, Robt. H. McConnell, and H. Embree Smith, all of Mobile, for appellee.

BROWN, J. (after stating the facts as above).

It has been repeatedly ruled here that the jurisdiction conferred upon law courts by the statute, section 9521 of the Code, authorizing a rehearing and requiring the application to be made within four months from the rendition of the judgment, is statutory and limited; that such proceeding is not a continuation of the proceeding in the original case, but is the commencement of a new action. Evans v. Wilhite, et al., 167 Ala. 587, 52 So. 845; Renfro Bros. v. Merryman & Co., 71 Ala. 196; Martin v. Hudson, 52 Ala. 279; Ex parte Johnson & Seats, 60 Ala. 429.

As was held in the case last cited, the clerk of the court has no authority to receive the petition, "no authority to introduce it into the files, and no authority to issue any process founded on it. Until it has been presented to the judge to whom it is addressed, and he has decided to entertain it, and ordered a supersedeas of the execution of the judgment, the petition does not become a paper of the court, and the clerk has no duty to perform in reference to it. His first duty is the taking and approval of the bond, and the issue of the supersedeas, in obedience to the order of the judge. The power to entertain the petition, and to make the order for the supersedeas, is a power belonging not to the Circuit Court, but to a judge thereof." (Italics supplied.) Ex parte Johnson & Seats, 60 Ala. 430; Code of 1923, §§ 9522, 9523, 9524.

To state the proposition in other words, while the jurisdiction and power to grant relief against the judgment is a power that is conferred on the court, not the judge, Code of 1923, § 9525, the initial steps in the proceedings, essential to a quickening into exercise of this jurisdiction, is the presentation of the petition to the judge for "the necessary order for a supersedeas to issue." Code of 1923, § 9523.

Such was the interpretation placed on these statutes in Ex parte Johnson & Seats, supra, more than a half of a century ago, and they have been repeatedly brought forward in the several Codes since without change, with the result that this interpretation has become a part of these statutes by legislative adoption. Spooney v. State, 217 Ala. 219, 115 So. 308; Ex parte Gay, 213 Ala. 5, 104 So. 898; Barnewall v. Murrell et al., 108 Ala. 366, 18 So. 831.

It not affirmatively appearing on the record that the petition for rehearing was presented to the judge within four months from the rendition of the judgment of condemnation, it was properly stricken from the files for want of jurisdiction in the court to entertain it, and the order of the court striking the petition will not support the appeal taken therefrom, and therefore that appeal will be dismissed here ex mero motu. Gunter v. Mason, 125 Ala. 644, 27 So. 843; Temple v. Dooley, 196 Ala. 360, 71 So. 683; Dunning v. Holcombe, 203 Ala. 546, 84 So. 740; Adams v. Wright, 129 Ala. 305, 30 So. 574.

The separate appeals of the judgment defendant and the garnishee are from the same judgment, and the motion to consolidate these appeals is ill-advised and will be overruled.

Roberts et al. v. Kemp, 218 Ala. 350, 118 So. 656, and cases of like import, holding,...